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Filing of Bail Application Directly in Court of Session in Offences Punishable With Death or Imprisonment For Life M. L. Singhal

This document discusses bail procedures for offenses punishable by death or life imprisonment under Indian law. It summarizes that [1] magistrates do not have jurisdiction to grant bail for such offenses, [2] bail applications are often rejected or delayed at the magistrate level before being granted by sessions judges, and [3] there is no statutory requirement to first apply to magistrates. It recommends [3] allowing accused persons the option to directly file bail applications with sessions judges for these serious offenses to reduce delays and unnecessary detentions.

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Adv Arun Kumar Sharma
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91 views

Filing of Bail Application Directly in Court of Session in Offences Punishable With Death or Imprisonment For Life M. L. Singhal

This document discusses bail procedures for offenses punishable by death or life imprisonment under Indian law. It summarizes that [1] magistrates do not have jurisdiction to grant bail for such offenses, [2] bail applications are often rejected or delayed at the magistrate level before being granted by sessions judges, and [3] there is no statutory requirement to first apply to magistrates. It recommends [3] allowing accused persons the option to directly file bail applications with sessions judges for these serious offenses to reduce delays and unnecessary detentions.

Uploaded by

Adv Arun Kumar Sharma
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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FILING OF BAIL APPLICATION


DIRECTLY IN COURT OF SESSION
IN OFFENCES PUNISHABLE WITH DEATH OR
IMPRISONMENT FOR LIFE

M. L. Singhal
H.J.S.
Director, J.T.R.I., U.P.

Section 436 Cr.P.C. provides for ball in bailable offences, Section 437
envisages provisions for ball in non-bailable offences and Section 439 deals
with the special powers of the High Court and Court of Sessions regarding ball.
A perusal of Sections 436, 437 and 439 Cr. P.C. shows that in offences
punishable with death or imprisonment for life, the Magistrate has no
Jurisdiction to enlarge the accused on bail. Whenever the Magistrate has granted
ball to the accused in such cases the superior courts have expressed unhappiness
over the same. In working, it has been found that when an accused moves
application in such offences, before the Magistrate, the Magistrate rejects the
ball application with mere observation that he has no Jurisdiction to grant ball in
such cases. The accused moves bail application in such cases, thereafter before
the Sessions Judge and In quite a large number of cases, the Sessions Judges
enlarge the accused on ball In such offences. The provisions of the Code of
Criminal Procedure do not provide that ball application in such offences should
be moved in the first instance before the concerned Magistrate. It is, however,
usual practice that a person desiring ball should first approach the lower court,
but this practice is not inflexible as Section 439 Cr.P.C. bestows unlimited
Jurisdiction on the Hon'ble High Court and the Court of Sessions in the matter
of granting bail. Under section 439 Cr.P.C. the Hon'ble High Court and the
court of Sessions have concurrent Jurisdiction to grant ball. In particular
circumstances, the Hon'ble High Court can entertain a bail application direct
(Vide Abdul Karim Khan v. State of M.P., AIR 1960 MP 5, P.Mohi-ud-Din v.
Emperor, AIR 1938 Lahore, P.762, Inder Das v. State AIR 1951 HP 31 and
Rama Dass and others v. State 1992 (3) Crimes 915 (Madras) .There is no
statutory bar in moving an application for ball directly before the court of
Sessions for offences punishable with death or imprisonment for life.
A lot of time of the Magistrate is consumed in disposal of ball
applications of aforesaid nature. Apart from it, there is also unnecessary
detention of the accused. It appears expedient and In the Interest of Justice that
in offences punishable with death or imprisonment for life the accused should
be given liberty to file bail application directly before the Sessions Judge. It

Elevated to Hon’ble High Court subsequent to publication of this Article.

1
may be canvassed that under first proviso to Section 437, Cr.P.C. the concerned
Magistrate may release a person on ball, in such offences if such a person is
under the age of 16 years or is a woman or is sick or Infirm, the accused may
press for bail before the concerned Magistrate under the aforesaid proviso To
bestow this opportunity, the accused may be given option to file ball application
either before the concerned Magistrate or directly before the Sessions Judge in
cases of aforesaid nature.
The requirement of appearance of the accused before the court may be
satisfied by surrender of the accused before the concerned Magistrate and
annexing a copy of the certificate to that effect obtained from the concerned
Magistrate, with the ball application which may be moved before the Sessions
Judge. In writ petition Number 919 (M.B.) of 1992, Noor Mohammad v. State
of U.P. and others, decided by a Division Bench of Hon’ble Allahabad High
Court on May, 14, 1992, the following observations have also been made:
"By an administrative direction every person is required to move an
application for ball before a Magistrate before he moves the Sessions Judge. In
cases where a bail can possibly be granted by a Magistrate under Section 437
Cr.P.C., such a direction is good and valid. However, there does not appear to
be any justification for requiring a person to move application before the
Magistrate which application the Magistrate has no jurisdiction to allow. It is a
futile step being administratively added which unnecessarily results in
lengthening of the proceedings. This court acting administratively can consider
doing away with moving of a ball application before a Magistrate when a
person seeks ball in a situation where the ban cannot be granted by the
Magistrate."
In view of the enunciation made above, the accused may be given option
to file ball application in offences punishable with death or imprisonment for
life before the concerned Magistrate or directly in the court of Sessions.
Suitable amendments if necessary may be made in Criminal Procedure Code.
[J.T.R.I. JOURNAL – Second Year, Issue – 4 & 5 - Year – March, 1996]

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